Perhaps the Department of Education took a cue from Congress, which has a reputation for kicking the can down the road, delaying major decisions until after elections (or month-long recesses). In a recent SBA Office of Hearings and Appeals NAICS code appeal decision, ED decided to forego picking a NAICS code until after contract award.
SBA OHA was having none of it, and ED’s own lawyers even agreed–an agency’s NAICS code designation cannot be delayed until contract award.
The good news for 8(a) Program participants (and applicants) is that the United States District Court for the District of Columbia ruled earlier this month that the 8(a) program is constitutional as a whole. The bad news is that the same court found the 8(a) Program unconstitutional as applied to the plaintiff’s specific industry, military simulation and training.
For disadvantaged companies in the military simulation and training industry, the court’s decision in Dynalantic Corporation v. United States, No. 95-2301 (2012) is a major setback. Already, the DoD has apparently suspended 8(a) contract awards under the Simulation, Training and Instrumentation Acquisition Center in the wake of the court’s ruling. For 8(a) companies in other industries, the critical question now is what impact–if any–Dynalantic will have on 8(a) awards in other industries.
The Department of Defense has apparently suspended all 8(a) contract awards under the Simulation, Training and Instrumentation Acquisition Center in the wake of a federal court decision issued earlier this month.
In a press release, leaders of the Native American Contractors Association and the United States Hispanic Chamber of Commerce blasted the DoD for overreaching in response to Dynalantic Corporation v. United States, No. 95-2301 (2012), in which the United States Court of Appeals for the District of Columbia upheld the constitutionality of the 8(a) Program as a general matter, but found that the 8(a) Program was unconstitutional as applied to the plaintiff’s specific industry, military simulation and training.
I’ll have much more on Dynatlantic and the fallout from the court’s decision after the Labor Day weekend. Unfortunately, for 8(a) companies–especially those doing business with DoD– the holiday weekend begins on a very ominous note.
If you’re an eight-year-old who has recently begun the literary journey to Hogwarts School of Witchcraft & Wizardry, avert your eyes, because here comes a major spoiler: at the end of the Harry Potter series, a grown-up Harry, now married to his pal Ron’s sister, Ginny, sends his own child off to Hogwarts. Oh, and Ron is married to Hermione, and they also have Hogwarts-bound offspring.
How do I know this culturally valuable information? Because I read to the very end of the last Harry Potter book (yes, I’m one of those people). Contrast this with the VA, which in a recent GAO bid protest case, refused to consider certain information presented by the protester because the information was contained in an exhibit to the proposal, not the narrative section. The GAO’s reaction: “read the whole stinkin’ proposal, VA.”
Joint ventures seem to be an increasingly popular vehicle for pursuing federal contracts, but the FAR and agency solicitations usually are not written with joint ventures in mind. As a result, confusion can sometimes arise over how a joint venture’s proposal should be evaluated.
Case in point: past performance. A joint venture is often a new legal entity, so should it receive a “neutral” past performance score? Not necessarily. According to a recent GAO bid protest decision, it is perfectly acceptable for a procuring agency to consider the relevant experience and past performance of the individual joint venture members.
SDVOSB protests relating to VA set-aside procurements may only be decided by the VA Office of Small and Disadvantaged Business Utilization. In a recent decision, the SBA Office of Hearings and Appeals confirmed that the SBA currently lacks jurisdiction to decide SDVOSB protests under VA set-aside procurements.
Past performance is a key ingredient in most competitive government procurements. Even if a contractor’s overall past performance record is excellent, a single blemish can damage the contractor’s chances of award.
In a recent GAO bid protest decision, the agency relied on a single adverse past performance reference to assign the contractor a poor past performance rating–even though the contractor strongly disagreed with the adverse reference. The GAO held that there was nothing wrong with the agency’s past performance evaluation.